The Separation of Powers and the Usurpation of Legislative Power by the Judiciary

Abstract

This thesis addresses the theory of the separation of powers, examining its historical origins, evolution, and importance for the functioning of modern democracies. The theory of the separation of powers, developed by Montesquieu in "The Spirit of the Laws," divides state power into three independent branches: Legislative, Executive, and Judicial, with the goal of preventing the concentration of power and ensuring liberty and justice. The research explores the historical evolution of governance forms and how the separation of powers became a fundamental principle during the Enlightenment, being incorporated into the constitutions of various countries, including Brazil. In the Brazilian context, the 1988 Federal Constitution enshrines the separation of powers and establishes checks and balances mechanisms to ensure balance among them. The study also examines the importance of accountability and external control mechanisms of the powers, highlighting how transparency and responsibility are essential for preserving democracy. Particular attention is given to the issue of the judiciary's usurpation of legislative power, a phenomenon that raises debates about the legitimate actions of the courts and the preservation of the balance among the powers. The research concludes that the separation of powers is crucial for institutional stability and the protection of citizens' fundamental rights. Through a critical analysis, the thesis offers reflections on contemporary challenges in effectively implementing the separation of powers in Brazil and proposes ways to strengthen democracy and justice in the country.